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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, October 31, 2015

Happy Halloween


Friday, October 30, 2015

LGM!


Looked bad early but Thor held and offense (with a bit of help) showed up. 2-1. Error AND other stuff resulted in ANOTHER blown save, this time didn't take until the 14th to end game. This is so f-ing aggravating. The end of the game when there were two on and the guy who has done little and helped KC score at least one run got doubled off iced the cake nicely.

Then Comes Marriage: United States v. Windsor and the Defeat of DOMA

The lead attorney, Roberta Kaplan, provides an account of the case led to the striking down of Section 3 of DOMA and quickly led to same sex marriage being recognized as part of the constitutional right of marriage.  I am about half-way through, but it is a good read and focuses a lot on the personal stories of both the author and the subject of the case, Ms. Windsor. (I reserved the documentary of her story.)  It is a good addition to Supreme Court and GLBTQ literature. Note Kaplan also was involved in the "People's Brief" amicus to the SSM Cases, which I signed.  This book was finished about when those cases were decided, Ms. Windsor's introduction dated May 2015. 

It is geared to the average reader and the passage of the legislation and legal analysis of the opinions involved etc. are not provided in depth. On the latter, from the perspective of the Clinton Administration, Buzzfeed has an excellent account with chunks of links to documents (the author doing great work perusing tons of material). As I noted shortly after it was written, in the face of some criticism even from some supporters, think the opinion itself was pretty good.  I would have liked at time a bit more discussion on the background of DOMA (why not like ten pages or whatever in the appropriate spot in the book instead of a brief summary?) and of the opinions and dissents (less important). One thing it surely should have had was an inclusion of the brief text, perhaps as an appendix:
Section 1. Short title
This Act may be cited as the "Defense of Marriage Act".
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
The title is a slam on various types of marriage (sic).  The second section at the time (mid-1990s) was somewhat benign since this was pre-Lawrence v. Texas and all. But, putting aside the general issue of same sex marriage being protected, one problem here is that "judicial proceeding" has a stricter test in respect to full faith and credit. And, I think singling out one class of people here is not a "general" regulation under that clause and a violation of equal protection. Finally, again, the last section is blatantly unconstitutional both as to the people involved and as an infringement of federalism.  There was a serious Romer v. Evans claim though the law clearly was in flux at the time.

I don't recall my opinions at the time on DOMA particularly though felt same sex marriage perfectly logical and do remember supporting gays in the military. DOMA was a rearguard action in response to same sex marriage seeming to be on the way to be recognized by court action in Hawaii though it amended its constitution to allow the legislature to decide the matter itself (it didn't block it totally as most states eventually did). The moderate if wrong approach there would have been some form of the second section though again its breadth as to the courts might have caused problems when same sex marriages began in the early 2000s. This would have reaffirmed the traditional "public policy exception" rule without singling out one form of marriage to deny federal benefits in "any" case (the breadth showing the Romer problem). Let things develop like marriage changed over the centuries.  Clinton signing this was disappointing though the book suggests even as late as 2011 you could be considered not a homophobe for opposing same sex marriage and in various ways Clinton was pro-gay.  Him being wrong -- along with some others more liberal than he was at the time -- should not erase that.

Anyway, putting aside the novelty suggested by some comments on the back cover is a tad exaggerated, the book provides a good personal look at the history here from the perspective of a lesbian who came out, fell in love, married her partner in Canada and eventually had a child with her (the partner conceived). So, it is not just a legal account -- though my carping above aside, that is covered well too including early happenings in NY -- but a personal story as well.  It is a brisk read -- these days with the Internet and all that is important for me! -- and recommended.

Update on Completion: Nothing really to add except this news story. Actually, two things. First, "Windsor" is actually her name per a brief marriage to a man in the 1950s. A bit strange to me she kept the name especially since the man eventually remarried.

And, I am a bit depressed etc. that no justice couldn't accept the judgment on federalism grounds. The argument isn't to me compelling but given at least Justice Thomas' jurisprudence, it seems compelling enough to warrant a fuller refutation than briefly offered (with silent agreement by Justice Thomas) in Alito's dissent. It is true only Alito among the dissenters accepted standing for the "U.S." or BLAG (the House), but all the justices discussed the merits. Cf. the Perry case where the dissent would have went to the merits but didn't discuss them.

While I'm here, since I went back to listen (Oyez.com), including the bench statements, at least Alito focused on how it's appropriate for Congress to favor one type of marriage. Scalia's usual scorn at how the majority were horrible activists for deciding the merits alone a bit hard to take -- apparently, it would be better for the Administration to put forth a half-hearted defense or put off  deciding the question until a better case would come along. Administration decided to let the courts decide a legal question. Shocker!  Didn't pay the 300K. There was a controversy.*

The other part was the b.s. about how terrible it was to disparage Congress and the President for passing DOMA. The law did harm gays and lesbians. Scalia et. al. thinks Congress has the power to legislate morals that way. Have the courage to simply state that here. If we told Scalia his marriage to his wife wasn't really "marriage" and she couldn't be given any benefits arising out of it since Italians can't get "married," would he not think they would be demeaned?  It's simple b.s. to argue "uniformity" was the reason, when ONE type of marriage was singled out there while other types not found in each state were not.

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* Scalia noted during oral argument that back in his day that they didn't avoid defending statutes like this except if executive power was at stake or if there was no rational grounds. The Administration actually argued the latter though various people didn't believe it.  I think rightly so.  Another person in the know defends him here. Matter was disputed, but at worst, there were respectful arguments both ways.  And, given the range of ways DOMA also affects the executive department (e.g., the spouses of same sex couples, even after the end of "Don't Ask, Don't Tell," in the military), the second criteria to me is present.

Thursday, October 29, 2015

Florida executes Jerry Correll

Executions continue after two justices said the death penalty is probably unconstitutional. Today, Breyer dissented on two grounds (others long time on death row though were earlier this year executed without comment from him) and (this time with Sotomayor) because a pending case covers a claim raised. He was executed, appearing to be a "worse of the worst" candidate. What of RBG? Or, Kagan on the second issue? He also opened a way to a Glossip redux dissent but no one bit. Meanwhile, HRC is for kinder and gentler death penalty.

The Great New Orleans Kidnapping Case: Race, Law, and Justice in the Reconstruction Era

The author was one of the guests discussing The Slaughterhouse Cases on Landmark Cases and this grew out of his research. It is an engaging true life Law & Order episode, 1870s style hurt by the fact we aren't left with a clear knowledge of what truly happened. Colorful mixture of characters ripe for filming, but might add a solution there. Here, the case looks doomed early, and we are barely half-way in. Net result is somewhat depressing.

Wednesday, October 28, 2015

World Series Game One -- 15 Years Pass and Same End Result

Update: Pathetic Game 2. I checked. The 2000 version was the infamous "bat" incident with Clemens tossing a shard toward Piazza ("unintentionally") and the ace faltered. But, at least they showed life in the 9th (five runs!). Here, the team looked dead.

Tuesday, October 27, 2015

Lochner v. N.Y.


We also judicially know that the number of hours that should constitute a day's labor in particular occupations involving the physical strength and safety of workmen has been the subject of enactments by Congress and by nearly all of the states. Many, if not most, of those enactments fix eight hours as the proper basis of a day's labor.

I do not stop to consider whether any particular view of this economic question presents the sounder theory. What the precise facts are it may be difficult to say. It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion. There are many reasons of a weighty, substantial character, based upon the experience of mankind, in support of the theory that, all things considered, more than ten hours' steady work each day, from week to week, in a bakery or confectionery establishment, may endanger the health and shorten the lives of the workmen, thereby diminishing their physical and mental capacity to serve the state and to provide for those dependent upon them.

- Justice Harlan (Lochner v. N.Y., dissenting opinion for three justices)
This week's C-SPAN Landmark Cases episode dealt with a now infamous decision striking down a ten hour law (sixty hours a week) for bakers in 1905. This led to the so-called "Lochner Era," which is a sort of open-ended trope that means different things to different people. Tropes are helpful for their flexibility so it is not surprised it is used in various ways. Justice Black, for instance, saw it as a general concern about the courts striking down laws based on their own predilections, thus he focused on the Bill of Rights and other specific constitutional text (though, e.g., his application of the "one person, one vote" principle showed his choices there is debatable and at times rather broad in scope).

Others felt "shifting economic arrangements" were particularly something for legislatures to handle but that other personal rights like marriage or privacy could warrant closer judicial scrutiny. Some also argue that on the merits the economic regulations such as minimum wage laws could meet even somewhat heightened scrutiny given let's say the imbalance of power involved. Use of terms like "liberty" or structural principles such as federalism to find times when the courts should look closer at governmental action are used by both sides in different ways. Some still worried about "Lochner" but found some cases where the courts could go past specific terms like "speech"* though at times it still is used as an open-ended attack at alleged judicial activism even when the courts seem to be applying equal protection or some other express provision. See, e.g., CJ Roberts in the same sex marriage cases. 

And, just how often the courts in the "Lochner Era" struck down laws is also debated, especially given we are talking thirty years.  I think this moves to my view -- the case has been exaggerated some and this leads to some exaggerated balancing such as by David Bernstein.  His book on the case has a picture on the cover where the author of the opinion knocks out Justice Holmes whose dissent is particularly famous.  But, Harlan's dissent (also dissented in Plessy v. Ferguson, the segregation case and was an early supporter of the incorporation of the Bill of Rights)  is to me more telling. Justice Harlan supported the "liberty of contract" and in other cases found laws that violated it. But, here found that the law was reasonable as a public health measure.

This moderate approach brings to mind last week's Slaughterhouse Cases program. Holmes in his dissent notes that the Constitution favors no economic theory and Harlan has a bit about that too.  Likewise, there is no assumption that government merely has an open-ended right to regulate unless a clear enumerated provision of the Constitution stops them.  Holmes spoke of laws where "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law." Justice Harlan at times was more strict in applying this test than Holmes, but even that one has some bite especially in certain hands. 

I think it fairly easy to argue that we have a "liberty" of contract on some basic level since this is a basic aspect of everyday freedom. Each purchase we make, each sale we make is a type of contract.  Freedom itself entails some freedom to contract. Due process is but one place to find such a right. And, no justice then or now thinks the freedom absolute.  The problem was to determine if a certain law was reasonable and over time a complex set of rules were developed to do so.  After the 1930s, government had a more free hand though there remains various constitutional limits (e.g., selling to a certain race) with some states having stricter rules than the federal Constitution as now applied.  

The case was closely decided in both the state and federal courts and I think a major reason was that the law was in flux at the time. The government had for a long time regulated business but the level of regulation was growing as society changed in so many ways.  It was also a great time of economic development with reformers trying to pass a range of laws, including the health and safety aspects of the law here that even Randy Barnett (one of the two guests on the program) deems perfectly constitutional.  The powers that be were still divided here with economic libertarians having a major place at the table.  And, there was great concern over "class legislation," including progressive income taxes and various laws passed to aid workers.  

This is what was seen as a red flag to the five justices here.  If this was a mining law, though not every justice signed on even there, a maximum hour law would likely be okay.  A few years later, if not as much in the 1920s, women workers also received special treatment. But, baking seemed a normal and safe profession that did not need special treatment like this. The majority opinion had a section that was a sort of parade of horribles that would seem to question a range of occupational and safety rules of today's workplace.  But, in particular, it was not a general law (like the current forty hour law basically is) but favored a special class.  The dissent argued that there was a good reason for that but others questioned it.  

At the end of the day, changing understandings of economic life resulted in changes of this understanding at least to the degree it was seen as a constitutional problem.  I think that is an appropriate and acceptable way of constitutional change and overall don't think the ruling particularly horrible. The Harlan dissent to me does seem correct and at the time it was in the air what way the 5-4 would go.  But, the difference between the two opinions is less than some suggest.  The clash is greater if we take Holmes' approach given his overall record though even he at times found limits including in the speech area.  But, other examples can be found such as privacy and takings jurisprudence.

The case is another useful landmark both as a view of an age (bakers, works, politics, judges of the era etc.) and for its role in jurisprudence over the years.  Theodore Roosevelt is is said was the person who first gave it its mark of infamy, others later seeing it as something of a badge of honor.  I hold a somewhat middle view.  Lochner's first name btw was Joseph.

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* A lot more can be said about this subject, but slightly edited this paragraph to add a bit more nuance. One thing to add too is that "economic" and "non-economic" are not going to be the only thing that matters here no more than some other black/white dividing line. So, e.g., commercial speech is protected to some degree as is sale of contraceptives. Economic regulation nonetheless in some broad sense remains a noticeable category as particular "public" and more open to regulation even when the regulations seem to be pointless and favoring certain groups. This leads to let's say broad regulations of hairdressers or something that make sympathetic cases for those of Randy Barnett's ilk. 

Supergirl's Boss is Ally McBeal?

It's somewhat hard for me to get into series television except for a few things these days so don't know about Supergirl. The first episode was fairly enjoyable with a pleasant lead and a few familiar faces (hey, it's the guy from Necessary Roughness!). Shall see.

Monday, October 26, 2015

Career of Evil (Spoiler!)

The principle of these books is a lot of investigating with not much happening mystery-wise and an "eureka" moment late though this time we don't get extended exegesis discussing the solution. The journey is the fun. Robin is a major focus here, including final prep for her wedding (Matthew seems to earn some respect than late does something stupid) and dealing some with a college rape. Strike's respect for her, including in respect to this, is shown too. Both characters continual confidence issues (in their own fashion) also are expressed. Transabled people are a key plot point but mostly seen negatively (caveat by Robin).

Sunday, October 25, 2015

Career of Evil

Never read/saw Harry Potter, but the author (after a run at a pseudonym that is on the book but with her name for some silly reason on the back flap) of the Cormoran Strike mystery series does do it for me. The books, including this one, seem somewhat padded but easy reading with two charming leads even if Robin's finance is a bit hard to take.

NY Football Teams Look Bad Day (Giants excluded)

Buffalo in London came back from a 27-3 deficit (backup QB kept on giving up the ball to Jags) but blew it in the end. Jets had a smaller lead more than once but kept on helping the Pats out (first score was off a turnover). Giving up a 3rd and 17 mid-4Q was a bad omen. Pats helped them in their final clinching drive with two incompletes to save time but on 3/10, Jets blow it. Jets even scored 55 yder and got the onside kick in less than a minute but final Hail Mary attempt (at 37) denied with a penalty ending the game. Cat taunting mouse.

Illicit Importation of Lethal Injection Drugs

Problems with drugs have been an ongoing issue for lethal injection in recent years, shortages (helped by European opposition) and related issues (including secrecy to cover up alternative sources) often being front and center. This includes at best dubious attempts to import with various issues covered here (see also my comments). Don't quite understand why "safe and efficient" doesn't apply or why states have the final say if it is a matter of international commerce. And, it's the law, not just "guerrillas" at issue here.

Trattoria

Each Saturday night, PBS has two films -- a classic and a modern independent, the latter last night the title film which is in effect an Italian restaurant. It was a nice film about the owner (the guy from The Closer/Major Crimes) dealing with a new restaurant and reconnecting with his son, who is thinking of being a chef. Comments of other chefs are intermixed in.

Friday, October 23, 2015

Lost in Transition: Ethnographies of Everyday Life after Communism

After reading her latest (The Left Side of History), read this earlier interesting mixture of personal history and ethnographic snapshots (including short fiction) of the troubles of Bulgaria's transition from communism. Both are geared to the average reader while doing a good job covering serious material. Trying to understand how another side accepted what to you is horrible is often hard. This book's empathy only is very important.

Wednesday, October 21, 2015

Re-sign This Guy!


Daniel Murphy, who should be re-signed, is locked in. But, he's also great after the game analyzing and being supportive to teammates. Some grumbled when he took paternal leave at the beginning of last season as he alluded to in the video. He also got some grief for his comments on the "homosexual lifestyle," even there wrongheaded remarks said along with supportive remarks about meeting gays and the possibility of one being on his team.

Update: Blue Jays stay alive; Mets go to the WS with Murphy having another homer. Wow! Sorry Jack.

Tempus fugit

I remember seeing a special Back to the Future trilogy viewing in one sitting. 25 years ago.

Tuesday, October 20, 2015

The Slaughterhouse Cases

 [Recent lecture on the Fourteenth Amendment is topical.]

The latest Landmark Cases episode was on with Paul Clement (patron saint of the wrong side in Supreme Court oral advocacy, but with over 70 cases, there are exceptions) and a biographer of Justice Miller as guests.  This was an interesting one in part because I am somewhat less familiar with certain aspects though read certain discussions including Charles Black's denunciation of the majority opinion. One interesting aspect that provides the personal stories involved are the slaughterhouses themselves, like the home of the Scotts in a fort did last time.  Miller and Campbell (the losing chief lawyer) too.

The usual account here is that the opinion eviscerated the Privileges or Immunities Clause of the Fourteenth Amendment, which was intended to be the prime source of fundamental rights with the Due Process Clause later used as an imperfect substitute.  The somewhat revisionist approach and the author here makes it to some extent is that the opinion did honor the core intent of the Fourteenth Amendment, the protection of the rights of blacks and avoided a broad "natural rights" approach that would threaten a range of economic regulations. In fact, the Supreme Court to some extent used substantive due process to do so in time. The true failure of Reconstruction was both political, and to the extent aided by the Supreme Court,  more an issue of other cases.

In hindsight, I think it's a mixed deal.  The opinion went too far.  The issue at hand was a reasonable regulation of a public nuisance.  It did not require a broad ruling that held that something like the right to an occupation was not a "privilege or immunity" (shortly thereafter this led to a rejection of the right of a woman to be a lawyer with three of the dissenters here needing to rely on other grounds, resulting in an infamous sexist concurrence).  The incorporation issue would arise eventually (soon enough really) but there was a way to not make the federal courts a wide censor of state police powers without going this far.  Ironically, like Dred Scott, the majority favored one side of a greatly disputed matter unnecessarily. The previous case points to a "privilege or immunity" that remained, namely, the right to argue a case in federal court.

The dissents in hindsight appear to have more staying power given our broader understanding of the reach of the opinion with substantive due process itself covered as well.  Should be noted though that on the specific matter the dissents were wrong; we are not talking a case like McDonald v. Chicago where a concurrence  uses a different argument to get to the same place.  The dissenters would have found a monopoly set up to regulate and cabin slaughterhouses for health reasons unconstitutional.  And, in the long run, the chief dissenter (Justice Field) was not quite consistent in his respect for liberty and equality, finding various cases of racial discrimination okay.

Again, some have argued that the Supreme Court here provided a reasonable approach that left open some protections for blacks and there were some cases involving juries and voting where justices in the majority did provide some grounds for optimism. But, other cases left a lot more to be desired, including the Civil Rights Cases (itself leaving open a Commerce Clause argument, but one justice privately deemed forcing service to blacks akin to involuntary servitude).  And, in time, the Supreme Court left open the principle that the amendment protects substantive liberties in a broad sense.  In this very case, the opinion did not say only blacks were the concern, even a bare bones view of privileges and immunity applicable to all after all.

The dissents show that substantive due process was already in the air and applied by some in the era in question to protect fundamental rights.  So, it is not non-originalist, to the extent that matters, to use that approach here. And, some conservatives have so shown.  As noted in the gun case (for which Paul Clement argued the due process side) suggested, over a hundred years of water under the bridge makes privileges or immunities (except in limited ways such as interstate travel) not the most realistic approach these days. It does help show the reach including the "make or enforce" language used in the Fourteenth Amendment.  As to the citizenship issue, equal protection and due process would protect differentiation of aliens except in various somewhat narrow cases where citizenship would matter.

A final thought. If the Supreme Court a mere five years after the fact split 5-4 over the meaning of the core of the Fourteenth Amendment, originalism just might have its issues.

Sports Update

It looked a bit troublesome midway, but the Jets offense dominated a flawed NFL East team afterwards while the Giants mostly were dominated the whole game by one. Various exciting final minutes in the NFL. Mets, including Superman Murphy (two more homers), beat two more aces. KC was up 2-0 too but now 2-1 though DeGrom is a bit better (though not so far vs Cubs) than Cueto. Still, winning 1/5 would be horrible. World Series or bust now!

Update: Make that 0/4 ... both teams one game away.

Monday, October 19, 2015

Return to Peyton Place (Film)

The film like the book was decent with the characterizations mixed (liked Allison and Selena as well as the editor best). Again, forming and selling the book came off best though Ted's mean mother was good too. They changed a few things, particularly Ted's wife. Decent ending largely not in the book including the mother turning against the daughter and a fight against censorship. Also, actually like the change in the ending regarding the editor.

Cocks Not Glocks (or maybe both?)

An article about a protest involving dildos to address allowing concealed carry in colleges (and more open carry various other places) led to loads of comments (mine too), including from the pro-gun rights brigade that repeatedly showed disdain for the deluded left leaning regulars. Such is the tone here for gun rights minutemen when this topic arises. The data here is at best split with much evidence tempering the value of gun ownership.

Abortion Matters

This is a good piece on how abortion rights are threatened lately especially laws that result in closing clinics. The inclusion of various viewpoints, including pro-life, in their own words is particularly useful and eloquent. Meanwhile, understand how some view it this way, but is it really necessary to think of an aborted fetus as merely "medical waste" to honor women's health and reject fetal personhood? Many surely don't think so. I comment more there.

Thursday, October 15, 2015

Murphy's brains, brawn lead Mets into NLCS (and pitching!)

Apparently mostly on guts, DeGrom got through six after they scored two in the first and repeatedly was on the ropes. And, then Daniel f-ing Murphy handled the scoring again, including getting two bases on a walk/steal and then a home run. Now, the Cubs.

Update: Turned out okay, but still pissed about Game 2 and Utley did hit a scary looking ball when he should have been suspended (games 3-4 originally, but kick in extra time for appeal, which was going to be Monday). Anyway, 1-0 with three to go. Welcome back Dark Knight.

Texas completes its 12th execution of 2015

Sometimes, opposition to the death penalty needs to rest on principle. The 24th person executed this year, a cop killer whose defense at trial was that he was off duty so it wasn't death eligible, is not a sympathetic case. The best I could find was that the 19 year old was a lost cause after his mom died, but even there, seen worse stories. Perhaps, the age. Ultimately, it's why him over other worst cases and the the system/executing overall.

From the Closet to the Courtroom

Book provides five stories ("family" for NYC rent law, school harassment, discrimination/Romer v. Evans, marriage/Hawaii, sex/Lawrence v. Texas) of key gay rights lawsuits. "Stories" is appropriate since it is not merely about the law/public effects but also the life stories of the litigants and the (mostly gay and lesbian) lawyers involved. Published in 2010. A few years later, Hawaii passed a law protecting SSM and one of the litigants in the old marriage case finally got to marry a woman, if not the one she originally wanted. The presiding officer was a judge, who served as her lawyer back in the day.

Wednesday, October 14, 2015

Two Underdogs Complete Collapse

Texas Rangers were up 2-0 and the Astros was up 2-1 with a four run lead late. They completed their collapse as the two powerhouses (Royals/Blue Jays) will face-off. Reckon that's good baseball though not interested in them. Rooting for Astros. Both had leads early today and Rangers even tacked on a run by a quirky play. End result the same.

Democratic Debate

Flipped on to it at various times. LC looked like a joke. Webb didn't look like a serious candidate either though offers the hope of at least a counterpoint from the right; but again, not really serious enough to do it. O'Malley is starting to get John Edwards references. Sanders sounds like a scold. Anderson Cooper was just a tad of an asshole. HC wins by default though she does come off as a serious public servant qualified to be President too.

Tuesday, October 13, 2015

Game Fives Coming Up (Cubs move on)

Congrats Cubs. Matz struggled but three runs total in a game started by a rookie who hasn't pitched for some time is pretty good. Too bad Kershaw, whose playoff problems were overblown, was damn good. Flores playing over Tejeda affected the scoring. And, the game might not even have been played if the MLB didn't screw the Mets. Sorry. Not forgetting.

National No Bra Day (Breast Cancer Awareness)


Scott v. Sandford

The first Democratic debate is tonight in the midst of a possibly clinching Dodgers/Mets game while last night's game was in the midst of the second segment of the C-SPAN Landmark Cases. This is less important since not only am again pretty familiar with this case (reading more than one book on it etc.), but once it is on, we can view it online along with a bunch of other stuff. The same for the last segment.  There are not only extras but other C-SPAN segments including a lecture by Breyer (saying "Taney" wrong) and a talk by a descendant of the losing parties. 

I only watched the first part of the episode but there was an excellent segment at the historical site where the Scotts once served as slaves to a military doctor that in an effect started it all (he died and his took over but then her brother is the "Sandford" of the case).  I did listen to a talk (looks to be one of the additional video) by a historian who wrote a book on Harriet Scott that helped provide a personal look at not Roger Taney, but the actual ordinary slaves involved.  But, such a personal look at the lives of the people was not covered much in most of the accounts I have read.  And, what of the other side?  A traveling military doctor, a woman that ultimately married a Republican politician and her brother who ultimately wound up in an asylum are prime material historical fiction.  This stuff, along with the issues, is why these cases are such good fodder.

This case is infamous, the "self-inflicted wound."  It should be noted that Congress and others wanted the question of slavery in territories settled by the Supreme Court.  Congress provided an accelerated process of review if some case arose in land obtained out of the Mexican War.  It might not have thought the question would arise as it did, but "whatever the courts say" was repeatedly said as a sort of dodge.  The new President was glad they settled the question and the Democratic Party as a whole was too.  The problem was more the reach there -- wait ... you are saying that even the Douglas popular sovereignty approach, where territories have the power to decide for themselves if slavery is legal is constitutional? A bit much.  It split the party in the end.

The portion of the opinion that struck down the Missouri Compromise could still be a problem even if people wanted them to decide the question. Be careful what you wish for.  It also is an example of a court reaching farther than necessary and doing so using a theory that some accept but was but one of various beliefs held.  This is why it's useful to rule more narrowly, find a ground that is a sort of least common denominator. After all, even not every person in the majority agreed with the reach of Taney's comments on congressional power over the territories.

But, the bad taste that the opinion leaves is more a result of the main opinion (joined by only three justices though on this point others either joined the sentiment or didn't challenge it) saying blacks don't have any rights government need respect under the federal Constitution.  This went beyond even the immediate question since all blacks weren't slaves or even the immediate children or grandchildren of slaves.  The basic problem here is shown by Missouri practice alone -- if blacks had no rights, how could they go to court at all for freedom suits?  Once you have a right to go to state court, diversity jurisdiction (the source of this case) seems apparent. This is so even if, as many courts at time did so hold, blacks did not have rights under the Privileges and Immunities Clause, except perhaps in a few cases (such as in Massachusetts, where blacks had full rights).

To be clear, the problem is not that slavery itself was upheld. The dissents do provide a means to show how the parties here could have won their freedom suits personally.  The case probably was debatable given the law at the time regarding what happens when you take a slave into free territory and then take them back to slave states. The matter of the Missouri Compromise, especially as applied to the federal territory they traveled to, added a special complication. No, the problem was the reach of the language. Blacks (or even slaves -- cited as "persons") having no rights is not required by the Constitution.  In fact, quite the opposite.

A final issue here is again the problem of misguided judicial activism. One target here is the due process component of the opinion, one that actually is minor and a bit confused. The opinion is a lot more concerned with the reach of the Territory Clause and blacks not having rights under the Privileges and Immunities Clause (and one such privilege will be access to diversity jurisdiction -- there is a limited approach there and corporations having only the latter showed it).  But, the opinion did add that people have a right to bring a slave into the territory without seizure improperly applied.  Slaves are "property" and cannot be deprived without due process.

Meanwhile, some radicals on the other side were saying the "liberty" of the black "persons" could not be deprived in federal territories. This shows that we shouldn't throw the baby out with the bathwater here.  The opinion held that allegedly the Constitution cites no power to Congress to invade the rights of slaveholders. The rejoinder being the Territory Clause does and property for that matter is regulated in numerous ways, particularly certain types like shown by gambling laws or slavery codes. The basic germ of an idea of a packet of rights that people have a substantive right to is not wrong.  The opinion handled the question wrongly but such will happen, at times horribly so.  But, the due process gotcha is lame at some point.

The case is interesting for the people involved, as an expression of big questions of the day and as a matter of judicial parties at work. I will end on that point and it is also nicely touched upon in the episode. We even see a copy of the Scotts handwritten petition with their mark ("X") for freedom. And, that was a common thing in slave states, over three hundred freedom suits on record by the number cited in Missouri alone.  Taney's opinion is at times cited to show how originalism is a bad approach but then we got here because the Missouri Supreme Court altered long policy and no longer recognized the rule that residence in free territory even once you come back to Missouri will make you forever free. Why? Changing times warranted a new rule given those darn Northerners were abusing the comity applied.  Was that "living constitutionalism" approach tainted too now? 

No, the devil is in the details. Same here and there are so many, making it a quite fascinating and educational case to continual to examine. Oh, I'll toss in one more thing. Justice Breyer in his talk naturally focused on Justice Curtis' dissent as a well written rejoinder to the plurality opinion recognized as the opinion of the court.  And, though Curtis turned out to be a pretty conservative sort that denounced the Emancipation Proclamation and so forth, it was.  This is perhaps particularly so because it was not a grand proclamation of rights of blacks -- it put forth a limited view on citizen's rights in fact.  But, we should also honor Justice McLean's dissent too, as I noted on this page ten years back. 

Monday, October 12, 2015

Brenda's niece


The four episodes when Brenda's niece (the actress' daughter) are up for The Closer Sunday late nite viewing party. The pot brownie segment is amusing and Fritz's freakout afterwards is a great moment too. The next episode involving aunt/niece interacting with a dying teenage boy was also very good. Sosie Bacon continues to act today.

Sunday, October 11, 2015

Insult to Injury: Mets Playoff Edition


Update:  MLB has suspended Utley for two games (which he appealed) for his slide and has promised to work to better protect infielders. This after some remarks by Joe Torre (who used to manage both the Yanks and the Dodgers, Mattingly was one of his coaches there) after the game that sounded like nothing much might be done. Let's see how it sticks. Some also have noted that this might in part be a matter of protecting Utley and/or MLB in general from potential retaliation and other negative stuff.

But, not satisfied really, since this only underlines that the umpires were wrong in the game and the game was still tainted by their rulings. Tejeda's leg is also still broken. An official ruling the slide was dirty only makes this clearer though it's something. Oh, he should not potentially face the Mets again in the series. Three games. Or, Mets can just win the next two and make the matter there moot.  (He might play as it is appealed.) 

To add to latest -- Utley will be available to play at least one game -- I'm okay with the appeal as a whole, but doubt seriously due process could not be fairly applied by hearing the case before the game. What exactly do they need to research here?  Let me add that along with a lot of good coverage there was some bad, including those who convince themselves other slides not the same were or think wrongful non-application (and it has been applied) gives people a pass now. 

Sports have various purposes and it is not just "a game" for that reason. This makes good drama with sports being a long time plot device for plays, films, television shows and fodder for intense debate in various fora. Sports are character building exercises, both on individual and team levels. They provide means to channel aggression and other passions, from ancient times in fact an alternative to actual combat.  And, it is a passionate means of entertainment for many, again going beyond merely watching a game, including a means to bond as families and friends.

It is not trivial stuff.  Yes, on some level, it is "just a game," and is not merely life and death.  But, even there, for many, it is rather important. People have escaped poverty, obtained an education and had their life have a major sense of purpose by means of sports.  Again, both on an individual and personal level.  It is a major aspect of our culture and this is one reason why I think it warranted to respect it as an important part of education.  It also raises various issues of public concern including funding public stadiums, various discrimination concerns, personal injuries especially in respect to boxing and football and other matters.

Again, important stuff.  For me personally, sports is an important matter, including as a means of channeling emotions and letting off steam. It also is fun on a basic entertainment level.  And, I want it to be fair. Last night, there was a basic act of unfairness in the Mets/Dodgers playoff game along with a particularly aggravating blowing of a lead/loss in a big spot.  The latter is part of the game, but a matter of great emotion all the same. The first is quite another thing, a basic threat to the integrity of the game.  The fact the Mets were less than nine outs away from a likely lock for the first round (2-0) just underlines the importance of the matter.  In context, it truly added insult to injury.

It was a pitching duel between one of the top three pitchers in the NL and the Mets young budding ace ("Thor" based on his appearance though he also looks to me as a ringer of Matt Damon) and the team was up 2-1 in the 7th. As in the past, the manager -- given the somewhat iffy nature of the pen -- was trying to stretch his starter for a few more outs. It was one out with men on first and third.  He might have taken out him sooner or used Jonathan Niese against a long term Mets killer (Chase Utley), but history really made that a risk -- Niese basically was in relief and the few times he tried that out late in the year were an adventure.

Anyway, old man Colon was brought in because of a good match-up and a hope to get a double play.  Plus, he looked calm in the few times he tried relief work.  Got the ground ball but not the double play -- in real time, it looked (and the analysts on television didn't disagree) that a double play would be hard to get.  But, one out (second base) with a man on first and two outs was something you could live with. Yes, 2-2, but the Dodgers ace was out of the game and on balance you figure the Mets probably have a bit of an edge, or at least even money. Plus, they won game one and a split in LA was also satisfactory. 2-0 would be great though. 

The problem was that Ruben Tejeda, a back-up who lately served as almost an everyday SS and helped win the game the night before with a key walk, was hurt.  It was later determined he had a broken fibula. Chase Utley, who has a history of nasty take out slides (replays suggested to many "slide" was generous here) even at least once before with Tejeda himself, hit him so hard that it broke the guy's leg.  In the process, though you had to look closely and some even missed it (and at least a few didn't think it was clear that it happened, making it not worthy of overturning the call), Tejeda barely didn't touch the bag. The play on the field though was that it was an out. And, Utley probably figured as much, satisfied he did his job -- run scores via take out slide.

Okay, so everyone was upset that Tejeda was hurt -- well, most, since some berate the guy's skills since he's really a journeyman type player, and some wanted Flores there (his defense at times was a bit questionable, but he became a fan favorite) -- and that the game was tied.  But, again, I was ready to move on, figuring 2-2 was livable. But, wait!  Utley, who people were already basically calling scum on Twitter etc., was called safe.  The "neighborhood play" -- in place in large part for just this purpose, to protect middle infielders from injury arising from take out slides -- was found not to apply.  That was necessary since if it did, it should not have been reviewed.  Likewise, it was not judged to be illicit interference. If THAT was called, the inning should have been over with the Mets UP 2-1.

The reason the neighborhood play was not called was that Murphy's throw to Tejeda pulled him off the bag so apparently this made the double play not possible or something.  This was said to be a "debatable" ruling.  The guy's f-ing leg was broken. If it was "debatable," the umpires should be very sure not to call it given the nature of the play.  And, I simply do not understand why the purpose of the rule suddenly changes given the player is still trying in the process of trying to make a double play and avoidance of injury still is a factor.  It sounds like b.s. to me and did to various other people. And, this only applies to the double play. We still have to deal with the nature of the slide itself.  Utley also never touched the bag, which confused a lot of people too.  The general reaction: WTF?!

I'm biased as a fan, but the injustice of the non-calls etc. here were expressed by various other people, including Kevin Burkhardt (a reasonable sort who used to be the sideline reporter for the team) and others.  The new pitcher -- this very situation of the middle relief getting key outs late with guys on base in a low scoring game was just the situation I was worried about -- got one out.  This should have been the third out.  He then gave up two hits and the Mets were down 5-2.  They were quickly retired in the eighth and didn't do much in the ninth either.  1-1 series.

Fans will get little satisfaction here, the best the team can do being winning the series regardless.  The game was not won if they got out of it 2-1 or 2-2, but most definitely it was a lot better than what happened.  You can second guess pitching moves in the seventh too, but that is part of the game. A missed tag or questionable ball or strike call is too, officials being human. But, this was more blatant. The team was screwed here and a rule in place EXACTLY to deal with a situation that happened was not applied when a guy's fucking leg was broken (not clear at the time, but it was obvious on the field the guy was hurt -- it might have been known then too actually).

MLB can't really do anything.  What can they do?  If they fine Utley, it basically is saying the Mets were screwed.  If Utley did something worth fining there, the player was interfered with by rule and the call on the field that directly affected the result of the game was wrong.  His apology to Tejeda, out while they have to call some minor league player since they need a damn back-up SS and no one else is available (the other guy had his first MLB shot at SS last month!), via Wright is charming and all.  Basically, you expect that reckless behavior from him in the game given his past efforts.  The true assholes here -- again I'm willing to be labeled just a fan but so many people are saying this is so -- are the officials. The integrity of the game is their responsibility.

Some, since it really is all one can do on some level, counsel us to move on. Just win the last two, accepting it was horrible, a "bad slide" etc.  But, nothing is guaranteed there, especially with a very good opponent and now a rookie with under ten MLB games starting a Game Four that very well might have matter a lot less.  Matt Harvey is great to have in a now essential Game Three and his last outing was impressive. But, the Dodgers are not the Nationals, and he gave up two against the Reds.  And, what if there is a Game Five?  This would mean your top ace will only start, assuming as we now have to retain our sanity, deeper into the next round.

Finally, just moving on will only encourage more of this shit, both the officiating and the dangerous physical contact.  Maybe, there will be a discussion of changing the rules here, like with the collision rule change at home plate.  This is merely Ruben Tejeda, not a star catcher, true.  But, there are rules in place already.  They could have been applied to at least call him out and have it stand to help protect the middle infielder or even to call the double play because of interference.  This is baseball, yes, not gun control, but a broken leg is serious too if on a lesser level.  Just being upset and moving on small scale and big at some point is the wrong move. This included mid-game. Terry Collins should have got himself thrown out.

I was pissed -- the crude language used to express my mood, as this will simmer on an off day -- when the NY Giants blew the first game of the season, a key divisional match-up, greatly helping the other team with an asinine play that gave them about thirty more precious seconds to drive down the field.  I didn't get a chance to watch the whole game, but if I did, it would be wasted because of stupidity and horrible play with under two minutes to play.  But, this wasn't merely the pen blowing it. This was MLB not doing their job.  Why should we watch if games turn on that?

The Mets are now basically left to winning two more damn games. MLB might preemptively warn each team, to avoid retaliation, which will hurt Harvey because now inside pitches etc. could lead to ejection.  Harvey is a bit of a mental case himself -- he can really come to the plate here or be a bit too hyped up. It helps the Dodgers middle starters provide a big drop-off, but they still aren't exactly scrubs.  Mets fans have a tendency to be pessimistic on average relatively speaking as is.  It is a sanity device to say "we got this," and the best of three should favor them with two in NY. But, life is harder now.  And, Utley -- only a bench player -- or even some other player getting hit doesn't give me much satisfaction. Not going to break someone's leg either.  The game is lost too.

By now, Mets fans are saying "of course" with all that happened this season. They can only try to move on, some of use still very upset, and win the series and move on anyway.  MLB should be on notice though. Fans deserve better. And, since sports are not merely trivial, there is a bigger message to be taken here as well. The Mets lost last night, but they are on some basic level not the true losers here.

National European Screws Over Native Peoples Day

The Columbus Day parade is just down the way from me. As someone who is half-Italian, sort of wish Italians had a somewhat less controversial holiday than some mercenary explorer who found the West Indes for the Spanish and then did some nasty things.

MLB Screws Mets

Game turns on b.s.  Why even watch?

Saturday, October 10, 2015

The Left Side of History: World War II and the Unfulfilled Promise of Communism in Eastern Europe

"Yes, exactly like Romania," [Elena Lagadinova] says, raising her voice. "But what kind of country are we to make women have children that they do not want? These children will be unloved because women have no time for them. They will become a problem to society. Or wives will avoid being intimate with their husbands to prevent pregnancy, and we will have more broken families! What kind of solution is that?"
The above quotation is from an interview the author has with a woman who was a teenage partisan during WWII Bulgaria and later had a long term leadership role in politics under the communist regime there. The book is a well written one with many nice photographs that provides a balance to those who see communism during the Cold War in black/white terms.  Me personally, I know basically nothing about Bulgaria, so it was interesting on that level too and will read another one of the author's books on the area.

The book is a two part story.  The first part, the story of which inspired the author to write it, involves a young British specials operations officer, Frank Thompson, who is part of a doomed effort to help partisans fight the German allied government during WWII.  We also get a look at family of partisans, including Elena Lagadinova herself, who allows us to blend into modern day. After Thompson is killed by the fascists, communists soon after took over the country.  The people here saw communism as the great hope for the future and Lagadinova and others (including the author) feels the people significantly benefited from the social welfare state that grew those years.  The problems are not just papered over -- the Stalinist purges of the early years are cited and censorship, shortages and so forth later.

But, this book sees things through those who supported communism, and the regime that ran from the mid-1950s into the 1980s is portrayed positively.  This is important -- things rarely are black/white and this is the case during communism as well.  A similar approach would be appropriate let's say to handle the Cuban experience.  I'm sure the appropriate sources can be cited to show the problems during those decades too. And, many felt things were far from all that positive once a new age came in the 1990s.  The book begins and ends with recent political troubles, aided by economic problems (as continue in Greece etc.) as well as sorry from a few old timers, who saw the past as better than post-communist society.

I'm sure there is a lot of complexities here and someone else might write a book on how the post-communist era has positive aspects for them and the country.  Also, change takes time to develop, and this includes finding a proper mixture of post-communism life along with the social welfare policies of old.  After all, Scandinavian countries had some of that sort of thing without the darker aspects of communism, including censorship and other absences of democratic values.  The book is not here to deny this; the author's specialty is ethnographic work, giving a window to the people involved.  That is the biggest charm of the book.

The book is meant to provide a window into some stories from the "left side," those who rightly or wrongly thought they were fighting the good fight. For instance, Bulgaria was not an occupied territory during WWII and partisans against the government for many only in hindsight were heroes.  The two ways of looking at things is brought to the fore late in the book when the author looks at list of victims of communism compiled recently that turned out to have various unsavory characters from the WWII regime.  The battle for history there surely continues. Good book.

---

* A tidbit from the book confused me and I emailed the author. Received an automatic reply that she was on vacation but later received an answer. It is great that the Internet provides such a direct means of interaction and that multiple times people who are quite busy actually take the time to answer my questions.  Also, to be a bit shallow, she's pretty cute!

Playoffs? Don't Talk to Me About ... Wait ... They Are Here

Playoffs in full swing and the one surprise of sorts is that the Blue Jays are down 0 and 2. Mets won Game One doing their thing (pitching, homer, wearing out starter, clutch hit by the Captain, Famalia). Murphy too -- when he does defense, you are doing well. Was Kershaw "not clutch"? As noted in a comment here, kinda yah, given he's CLAYTON KERSHAW.

Friday, October 09, 2015

Tinker tinker

An early case this USSC term involves the problems in the sentencing of a pair of murderers, which might be a prime example of "tinkering" down to it might not mattering on some level. Meanwhile, lethal injection continues to have issues. Are other options like nitrogen gas (the latest "ideal" method) better? The unsurprising answer: unclear.

Thursday, October 08, 2015

Wild Card Dominance

The Astros and Cubs took care of business with their Cy Young candidate pitchers shutting out the competition (Yanks/Pirates). The Astros were until recently division leaders while the Yanks were lucky to be there. The first handled it on three days rest, the second with a complete game. One loss trumps 98 wins for the Pirates this week.

Tuesday, October 06, 2015

Landmark Cases Series

[The author of a companion book to the series is interviewed here. Early on, a couple of the taped segments of the first episode were showed, and it was a good touch.  Problem is most of it involved the talking heads. Another thing is that the author notes one good thing about the shows is that we get a look at the people involved.  We do learn a bit about the characters but very little on nominal parties here.]

C-SPAN, in honor of the first Monday in October (official start of the USSC term), has begun a Landmark Cases series with the first one Marbury v. Madison on this week. The first episode was largely a talking heads segment with an author of a book on the case (which I have recently read) and Prof. Akhil Amar, a popular voice on television on constitutional matters. A few "C-SPAN on the road" type segments from the homes of CJ Marshall and so forth are intermixed along with a bit of a few statements from justices and apparently other parties (here a member of Congress). And, some calls are taken.

Those who are new to the case might have found it novel but basically nothing new was introduced for me personally. Letters from Jefferson and Adams, for instance, provide an intimate flavor but I'm familiar with them -- including Jefferson telling Abigail Adams that he thought the midnight judges was personally particularly hurtful. Reading the author's book and being familiar with Prof. Amar's style (looking at things in a somewhat novel way that he sort of portrays as kind of obvious ... why didn't others see it this way? ... in an "isn't this fascinating/exciting" nerd love sort of fashion) didn't help. Compare this to a 1970s PBS mini-teleplay where the events were re-enacted quite well. Or, another where the ratification of the Constitution became a televised political campaign. Again, I have the disadvantage of being more familiar with most of these cases (after all, I wrote papers about two of them!) than many others. Still, sort of disappointed.

Agree with Prof. Amar that the case was not quite as seminal as some suggest. The importance of the case was an official statement of something that was already in the air -- judicial review, including in the federal courts up to congressional action -- was already repeatedly cited and in some fashion even applied. A federal carriage tax was challenged by some Jeffersonians (along with the Alien-Sedition Acts opposition, I wonder about the evenhanded opposition the critics their had as to striking down the law -- did they accept even the latter could only be overturned by legislative action or perhaps jury nullification?). It was upheld by the USSC, but there was no suggestion of legislative supremacy. In the right case, judicial review might strike down federal law, just as it did in a few state cases. A few justices also refused to serve as pension hearing officers in a judicial capacity since they found it unconstitutional to be liable to be overturned by an executive officer. An attempt by Washington to get in effect an advisory opinion was also rejected, if unofficially.

Judicially striking down a congressional law might have upset "high" Jeffersonians, though by the 1820s even they were accepting, but the main problem in this case was the belief that this was in effect a political question. The President had the power to not deliver commissions pursuant to his discretion. The determination Jefferson did something wrong rankled for the rest of his life, even if the net result of the opinion was that the Supreme Court found that it could not offer relief. Some find problems with various aspects of the holding; one thing that seemed the case for me is that the Judiciary Act of 1789 provision need not be found unconstitutional. The wording is somewhat opaque but it seems to me that it could have simply been interpreted not to have applied in this situation. In effect, like Chief Justice John Roberts centuries later in the PPACA Case, a bit of constitutional avoidance would have been quite possible.

But, the genius of the guy has been long deemed to be his strategic use of the Supreme Court to promote a certain judicial vision. Merely applying the law, granting my reading is possible, would not be as useful as making clear the Court had the power of judicial review, even if it requires striking down a provision passed by the First Congress, one with various signers of the Constitution in it (including James Madison), signed into law by George Washington, who presided over those proceedings of the Constitutional Convention. It also allowed as was noted in the episode in effect the top Federalist remaining, now that Adams lost the election, the most popular one at least -- John Marshall, to shake a finger at the Jefferson Administration with only a mild shaking of the head at the challengers. They (there being four, even if three are mostly forgotten) didn't even misapply the provision in question not meant to apply to this situation; it was simply unconstitutional. The power to strike down a federal law not applied apparently (I have saw reference to one or two maybes involving technical issues) again until the 1850s, but it was there for the taking.

Prof. Amar noted that the opinion pointed to the importance of the Constitution for all government actors, not just the judiciary. A notable point even though the author was right to note the importance of the courts was specifically the point here. Note, for instance, that not striking down a federal law (or perhaps only doing so in a blatant case, much clearer than many of the times these days) does not make courts potted plants. Putting aside that statutory interpretation and oversight of local action is a big part of their duties, federal courts still would have the responsibility to protect persons from wrongdoing of executive officials. For instance, when a person was charged with a crime, they would have various rights that would rarely be interfered with by explicit congressional laws (an ex post facto law would be a situation where the courts would directly run into Congress). The Bill of Rights is largely open-ended, but executive action was probably assumed (outside of the First and Second Amendments) to be the biggest concern there.

The basic idea of judicial review was expressed in Federalist No. 78 and accepted as a logical application of constitutional text by a range of people by the time of the ruling. There was some dissent, but again, the holding that judicial review exists was not as revolutionary as sometimes implied. Opinions do however serve as markers and forthrightly hold things that often are only expressed in a more limited fashion. Griswold v. Connecticut is an example. The "right to privacy" was not totally newly applied in the mid-1960s in a 7-2 holding. Various other opinions spoke of a "right to privacy" in various respects, the right both a matter of state law (privacy torts) and constitutional law in various respects, particularly in the Fourth Amendment context. And, various opinions spoke of specific things now deemed as private that were protected "liberty" including family matters over children. These were useful later on.

But, such a clear expression of a right to privacy, particularly to protect private choices over not just spaces but actions in those spaces in this fashion and to do so as an opinion of the Court was special. And, something comparable is in place with the opinion at issue here though as Prof. Amar. noted the power of the courts to use it become much more important later on. Ditto the assurance of the courts to act, even when internal executive department matters are involved. In fact, Marshall himself would in a few years have an opportunity there while presiding over the treason trial of Burr and his alleged conspirators. This aspect of "judicial review," usually applied to examining the constitutionality of laws as such, was very important too. A trial where presidential clerks and even the Attorney General was involved showed the power of the judiciary as did the treason trial where interrogatories to Jefferson himself was involved.

So, the case was important, both for the national drama involved, but as to the particulars. It was not completely novel, since judicial review was "in the air" and even applied in a few cases, but the Supreme Court actively using the power in this fashion was of special significance. More so as judicial review was widely accepted, even by past critics, the debate now more over details. There still would be great debates over political questions and proper usage. The USSC, however, in a major way won the ultimate battle early on back in 1803.

But, it wasn't and still isn't all crystal clear, and this series should help inform the public at large to understand and further debate matters. Perhaps, later episodes will seem a bit more novel for me personally though.

Monday, October 05, 2015

Sports Weekend

Good for local football teams, one playing in London, though it took a bit of time for them to seal the deal while dominating early but not scoring enough to keep the other team out of the game. Mets ended on a nice note but the other five losses & losing home field over Dodgers (which I cared about when it seemed last Sunday to be quite possible) was a bit much. Toss in being no-hit again though realize so were the Dodgers twice earlier on. 90 wins though.

Friday, October 02, 2015

Our Shame

I'm embarrassed to say I get more numb to these shooting tragedies and I think it is because at this point we know with a moral certainty that absolutely nothing will be done to keep guns out of the hands of the rageful, narcissistic, delusional or psychopathic individuals who commit these atrocities.

-- Josh Marshall

The Court and the World


Courts using law from other nations is particularly controversial in such cases like applying the 8A, but Justice Breyer's new book is more about other matters. Overall, it is about how legal matters require knowledge of international matters such for treaty application, international commerce and so forth. Engaging with the world and back/forth influence is a smaller part. Somewhat more technical, important message to promote but not sure the general reader would find it as smooth as his last book. I didn't, skimming certain parts. Also, the mostly post-WWII focus is probably a bit misleading; there has been a great growth in recent years, but the interaction was there the whole time. Again, still worthwhile.

Thursday, October 01, 2015

Latest Mass Shooting


The 22nd execution is wrong but so are a lot more innocents dying in ways that should be preventable including in other areas like needless medical deaths. See, e.g., those who die per denial of health insurance or work place deaths. Some think focus on the death penalty crowds out other criminal justice harms. Many needless deaths. Basically, I think a sea change of culture is necessary here akin to homosexuality and smoking.